by David Gans, Director of the Human & Civil Rights Program, Constitutional Accountability Center

On April 14, 1873 – 136 years ago today – the Supreme Court decided the Slaughterhouse Cases, one of the Supreme Court’s most infamous, erroneous, and constitutionally destructive decisions.

Slaughterhouse held that the state of Louisiana had not violated the Privileges or Immunities Clause of the Fourteenth Amendment when it granted to a single slaughtering company a monopoly on the butchering of animals within the city of New Orleans. Going far beyond the analysis necessary to reject the plaintiffs’ claims, the Court’s 5-4 ruling drained the Privileges or Immunities Clause of any real meaning, and it has been little more than a dead letter ever since.

The framers of the Fourteenth Amendment had written the Privileges or Immunities Clause to protect the fundamental rights of all Americans, a critically important guarantee of substantive liberty necessary to ensure that the newly freed slaves would be equal citizens in the nation. Rejecting this original intent and the plain history of the Clause, the Court in Slaughterhouse held that the Clause only protected a narrow set of rights connected to the workings of the federal government, such as the right to access federal waterways or come to the seat of government. According to the Court, the Clause did not protect free speech or bodily integrity, rights that were crucial to the freed slaves’ liberty and security in the South.

This narrow and incorrect reading effectively rendered the Clause meaningless. Indeed, the few rights Slaughterhouse recognized as Fourteenth Amendment “privileges” or “immunities” were already protected by the Supremacy Clause, which would forbid state action that interfered with the workings of the federal government or the Union. Justice Samuel Miller, who wrote for the Court in Slaughterhouse, was no fan of the Privileges or Immunities Clause from the start. During debates over the ratification of the Fourteenth Amendment, Justice Miller favored a version of the Amendment that did not include the Clause. He wanted the Clause out of the Fourteenth Amendment, and in Slaughterhouse effectively had his way.

Slaughterhouse is an embarrassment to anyone who cares about the text and history of the Constitution; it essentially removed from the Constitution one of the document’s most important protections of human and civil rights. And, it is sorely missed today. Without any clear textual basis in the Constitution for protecting substantive fundamental rights against the actions of state and local governments, debates over the basic human rights that all people possess have run aground, mired in endless questions over whether the Constitution’s text, in fact, protects substantive fundamental rights against state infringement.

In our report, The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, Constitutional Accountability Center (CAC) tells the sad story of the Privileges or Immunities Clause: why it was written, how Slaughterhouse obliterated it, and why the chances for its revival are better than ever today. A copy of the report is available here, or to learn more about the Privileges or Immunities Clause, see previous blogposts here, here, here, and here.